Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2017 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Should the worker have been terminated? OR Should the worker been allowed to keep his job? Employee tests positive following earlier drug test refusal THIS EDITION of You Make the Call fea- tures a railway employee on a last chance agreement who tested positive for marijua- na on a post-incident drug test. e 50-year-old employee, referred to as M.B. by the arbitrator, worked with Ca- nadian National Railway (CN) for 26 years. Like all CN employees, he was subject to CN's drug and alcohol policy that required "biological testing for the presence of drugs and alcohol in the breath is conducted where reasonable cause exists to suspect alcohol or drug use or possession in violation of the policy, including after an accident or inci- dent." e decision on whether testing was warranted was to be made by a managerial or supervisory employee. e policy stated that violation would "re- sult in corrective action up to and including dismissal. Refusal to complete the testing process set out under this policy is consid- ered a policy violation." In January 2015, the worker refused to take a test following a train accident on the grounds that he wasn't controlling the movement of the train. CN terminated his employment for violating the drug and al- cohol policy, but the union negotiated a return to employment in July. As a condi- tion of his reinstatement, the worker signed a continuing employment contract, which subjected him to frequent performance observations by his supervisor, required him to abstain from illicit drugs at all times, and subjected him to unannounced drug testing from time to time. e agreement stated that if the worker didn't fully com- ply with the policy, he would be discharged from employment and wouldn't be eligible for reinstatement. On Dec. 17, 2015, CN required the worker to take a drug test. Two days later, the re- sults came in and the worker tested positive for a low amount of marijuana. e worker explained that he had received three dozen cookies from his wife in Jamaica for his birth- day and had eaten several. He said if there was any marijuana in his system, it would be from the cookies. He denied taking any medical marijuana or similar medications. CN held an investigation meeting on Jan. 1, 2016. e worker confi rmed his under- standing of the continuing employment contract and the consequences of violating it. However, he disagreed with the test re- sults "because I hadn't taken any drugs." He then submitted the results of a second test he took on Dec. 23 that came back negative. e worker said his wife threw him a birthday party and one of the guests brought cookies containing marijuana. He said he ate some of the cookies before bed and had no idea they contained the drug. He only real- ized what happened after his positive test. e worker presented a written state- ment from a friend who was at the birth- day party who claimed to have brought the cookies for private consumption and the worker inadvertently ate some of them. e friend apologized to CN and the worker in the statement for causing "damage to my friend's reputation and lifestyle." e worker said he was angry and upset by what happened and ingesting marijuana was "not my doing," but CN terminated his employment for violating the drug and alcohol policy and the continuing employ- ment agreement. IF YOU SAID the worker should have been terminated, you're right. e arbitra- tor found that a refusal to take a test was a breach of policy because such a refusal raises suspicion. A worker's claim he avoids drugs is dampened by refusing to take tests, said the arbitrator. Regardless, CN's policy indicated that a positive drug test would be considered a violation. e worker knew this because he had been terminated for a refusal before and signed an agreement recognizing the pen- alty of another violation. He also confi rmed this at the investigative meeting. e arbitrator also considered the likeli- hood of whether the worker knowingly con- sumed marijuana, as the test established that he did consume it. e worker's credibility came into question as the story he initially provided when the positive test came back and the one he told at the investigative meet- ing were diff erent. He initially said his wife sent him cookies from Jamaica, and later said a friend brought them — even providing a letter from the friend. is inconsistency didn't help the worker's cause. e arbitrator determined that the worker violated the continuing employment agree- ment and CN's drug and alcohol policy and his long service wasn't enough to mitigate his misconduct. " e (worker) was reinstated before subject to strict conditions through the continuing employment agreement. He has been shown not to have complied with these conditions," the arbitrator said. " is is a case where there is insuffi cient basis to alter the employer's decision." See Ca- nadian National Railway and Teamsters Canada Rail Conference (B. (M.)), Re, 2016 CarswellNat 6496 (Can. Railway Offi ce of Arb. & Dispute Res.).

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